Police search sinks murder case

Prosecutors say evidence found in cell phone unusable

June 08, 2006|By JULIE BYKOWICZ | JULIE BYKOWICZ,SUN REPORTER

To city prosecutors, the problem with the West Baltimore double murder case was laid out in the charging documents:

A police officer asked Davon David Temple, the 17-year-old suspect, "if he could have a look at his phone to see if there were any gang members [listed] in the phone. Davon gave Lt. [William] Davis permission to look in his phone. While Lt. Davis was looking at the contacts of the phone, he found a text message."

It was a potentially powerful piece of evidence. "I killed 2 white people around my way 2day & 1 of them was a woman," the message read.

But prosecutors said that the officer might have exceeded the consent that Temple had given. Prosecutors said the officer was wrong to delve into all the contents of Temple's phone without a search warrant, and yesterday they dropped charges against him, including two counts of first-degree murder.

He had been accused in the April 23 shooting deaths of Carroll County residents Jason David Woycio, 29, and Jennifer Lynne Morelock, 25, who was eight months pregnant.

Renee Hutchins, an assistant professor at the University of Maryland law school and a Fourth Amendment expert, gave this analogy of the cell phone search: Giving an officer permission to look through your pocketbook does not entitle the officer to look through a closed wallet within that pocketbook.

"Those are distinct items," she said. "Allowing an officer to look through your phone's contacts does not give him the right to look through other parts of the phone's memory."

The Baltimore Police Department's chief of detectives, Col. Fred H. Bealefeld III, said yesterday that he understands the city prosecutors' decision and regrets the way the cell phone was handled by the officer.

"We're talking about police officers, not Harvard-educated law professors, and they have to make very quick decisions on the streets," Bealefeld said. "Should [the officer] have known better? Do I wish he had taken a different course? In hindsight, yes. This was a narrow, legal technicality."

Text messaging - sending a note from one cell phone to another in a similar way to the older technology of digital pagers - is a relatively new phenomenon. As it has grown in popularity, police and prosecutors across the country have tried to harness it for criminal investigations.

"Obviously, cell phones are a very, very valuable investigative tool for police today," said Doug E. Salane, an associate professor of mathematics and computer science at John Jay College of Criminal Justice in New York. "They provide a tremendous amount of information. Short messages, pictures and emails all are available in one place."

One problem with this new tool, according to Margaret T. Burns, a spokeswoman for the Baltimore state's attorney's office, is that there are few, if any, legal precedents for how to obtain and use text messages as evidence.

With that in mind, Burns said, police should have sought a search warrant before looking through Temple's text messages, even though police said he gave his permission for officers to look through the phone for contact information.

It's an issue of the scope, said John S. Deros, Temple's attorney.

"My position all along has been that this was a bad search," Deros said. "Gang member phone numbers or whatever phone numbers they were looking for is different from the text message section."

Deros, who said his client "has maintained his innocence all along," said there also might have been problems with whether Temple voluntarily consented to the phone search.

Police and prosecutors said they will continue to investigate the case and could refile murder charges against Temple.

Instead of dropping Temple's charges, prosecutors could have gambled that a judge would have allowed the text message to be used as evidence at trial.

"It's not at all black and white," Hutchins said. "They certainly could have chosen to go forward and forge new ground."

But she said prosecutors might have chosen not to push forward because they saw the officer's search of the phone's messages was clearly wrong. It might have made a better case if the officer had turned on the phone and seen a text message that popped onto the screen, she said.

Text messages have been collected and used as evidence in criminal cases across the country - sometimes victims or witnesses have sent crucial information over their phones. Other times, such as in the double homicide in Baltimore, a suspect transmits a clue.

As a teen girl and her boyfriend pleaded guilty last month to attempted murder in Toledo, Ohio, a prosecutor spoke about a text message exchange between the two.

Prosecutor Michael Loisel said that about the time Devan A. Fields was stabbing and beating Catherine A. Varner's 15-year-old brother in the basement of the family home, Varner sent Fields a text message asking him what he was doing.

"Killing your brother" was the response he typed. Loisel said in an interview yesterday that the couple had erased the text messages but told police about them.

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